Illegal activity doesn’t preclude accident benefits

By Staff

A recent court decision expands the scope of accident benefits coverage, Toronto insurance defence lawyer Heather Vaughan tells

The Divisional Court case upheld a Licence Appeal Tribunal adjudicator’s decision to award accident benefits to a woman who hit her head on concrete during a “car surfing” accident.

The unanimous three-judge panel found the adjudicator was right when she decided the incident, which involved the woman standing on a rear bumper of her father’s car while holding onto the roof and a friend’s shoulder, qualified as an “accident” under the Statutory Accident Benefits Schedule (SABS).

“While reckless and foolish, [the woman] was using the vehicle for its normal purpose of transportation and there was an accident in which the Adjudicator correctly determined there was Statutory Accident Benefits,” the panel wrote. “This decision was reasonable and within the consumer protection purposes of the Insurance Act, which provides benefits to insured persons like [the woman], who was an insured under her father’s insurance policy.

“It is certainly an expansion because now we know that car surfing can qualify for accident benefits,” says Vaughan, partner with Benson Percival Brown LLP.

Despite the irresponsible and illegal behaviour of the claimant, she says the insurer always faced an uphill battle.

“I wasn’t particularly surprised," says Vaughan, who was not involved in the matter and comments generally. "It’s certainly an interesting case because it’s a reminder that doing something illegal doesn’t necessarily preclude recovery.”

When a dispute emerges over whether injuries were obtained in an accident under SABS, the claimants must meet a two-part test — first, showing that the injuries were caused by the accident, and second, that the vehicle was being used for a normal purpose, she explains.

“I’m not sure most people would assume that car surfing is a normal use of a vehicle, but that’s what the court has said,” Vaughan says.

Still, she adds that she has seen more outlandish attempts to claim coverage under a car insurance policy. For instance, one driver attempted to claim his policy was triggered after driving his car to an overpass, getting out of the vehicle and then tossing rocks over the edge, injuring drivers below.

“Clearly, the car-surfing case showed a little more connection to the use of the vehicle,” Vaughan says.

The insurer disputed coverage on the “purpose” element, claiming that benefits should be restricted to people making “ordinary and well known” use of vehicles.

But the Divisional Court found the company’s submission was self-defeating, observing that car surfing was well enough known to be criminalized under Ontario’s Highway Traffic Act.

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